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Successful Durham appeal unlikely, outside lawyers say

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The co-owners of Fair Finance Co. who were sentenced Friday on federal fraud charges plan to appeal their convictions, lawyers for the two men say.

But a couple of veteran criminal defense attorneys who tracked the trial of Tim Durham and James Cochran, along with company chief financial officer Rick Snow, say a successful appeal is an extreme long shot.

“If I was involved in that appeal, the last thing that I would do is overstate any hope to the family,” Indianapolis lawyer Robert Hammerle said.
 
Durham received a 50-year sentence and Cochran a 25-year sentence from Judge Jane Magnus-Stinson for defrauding Ohio investors of $250 million. Snow was sentenced to 10 years. Snow’s lawyer, Jeffrey Baldwin, couldn't be reached Monday morning to see if he plans an appeal.

A federal jury in June found Durham guilty on all 12 felony fraud charges stemming from the collapse of Akron, Ohio-based Fair. Durham co-owned the firm with Cochran, who was convicted of eight of 12 felony charges. Snow was convicted on five of 12 counts.

The lengths of their sentences are much shorter than what the government had recommended — 225 years for Durham, 145 years for Cochran and 85 years for Snow.

Following Durham’s sentencing Friday, his lawyer, John Tompkins, said he planned to appeal the conviction to the 7th Circuit U.S. Court of Appeals in Chicago. A notice of appeal must be filed within 14 days of sentencing.

Tompkins didn’t return a phone call Monday morning seeking further comment on what legal argument he might use to get Durham’s conviction reversed.

But Friday, he said, “anything that is likely to result in dying in prison can’t be described as a good result.”

Reached by phone Monday morning, Cochran’s lawyer, Joseph Cleary, said he, too, planned to appeal his client’s conviction, though he declined to specify on what grounds.

Cleary did not represent Cochran during his conviction and was appointed as a public defender in late September.

“What the issues in the appeal will be, at this point, I can’t tell you,” Cleary said.

Marty Solomon, a veteran criminal defense lawyer in Indianapolis who has argued several cases in front of 7th Circuit judges, said lawyers mostly cite lack of evidence or judicial error when appealing.

But in the case of Durham and Cochran, the chances of success are slim, said Solomon, who described the evidence as “powerful” and “overwhelming.”

“I would say that Durham and his co-defendants probably have a better chance of hitting a $500 million lottery than succeeding on appeal,” he said.   

Barring successful appeals, Durham, 50, likely will spend the rest of his life in prison and Cochran, 57, most of his remaining years.

Unlike state prisoners, federal inmates must serve 85 percent of their sentences. Durham would need to live to 93 to survive his sentence, and Cochran, to 78. Snow is 49 years old and could be out in 8-1/2 years.

Solomon said Magnus-Stinson likely gave Durham 50 years — basically a life sentence — instead of the recommended 225 years to avoid an appeal on the sentence. Most all federal appeals argue the conviction and not the sentence, he said.

“I never thought of her as a lenient judge,” said Solomon, who appeared before her during her time as a criminal court judge in Marion Superior Court. “So I knew right away that she would be strict with Durham.”

Federal prosecutors sought the stiffer sentences, taking into account 5,122 victims and a loss of $250 million, to punish Durham and Cochran for operating Fair as a Ponzi scheme.

Before his sentencing, Durham said he read many of the letters from victims and regretted that the company failed. He also defended Cochran and Snow but failed to offer an apology.

Cochran, though, sobbed while telling investors how remorseful he was over their losses.

“One thing I know for sure is that I regret what happened to all the investors,” he said. “I’m heartbroken. I never intended for this to happen.”

U.S. Attorney Joseph Hogsett called Durham’s 50-year sentence “a significant price that he deserves.”

The victims "lost their peace of mind, their trust in others, and their faith in goodness and mercy," Hogsett said in a prepared statement. "These are things they will never get back. What Tim Durham and his associates destroyed through self-indulgence was irreplaceable, and those people may never be made whole."

All of IBJ's coverage of Tim Durham and Fair Finance can be found here. The IBJ is a sister publication of Indiana Lawyer.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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